Schaefer v. Texas Emp. Ins. Ass'n

• Decision Date: 31 December 1980
• Docket Number: No. B-9580,B-9580
• Citation: 612 S.W.2d 199
• Parties: Bobby G. SCHAEFER, Petitioner, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Respondent.
• Court: Texas Supreme Court

Page 199

612 S.W.2d 199

Bobby G. SCHAEFER, Petitioner, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Respondent.

No. B-9580.

Supreme Court of Texas.

Dec. 31, 1980.

Rehearing Denied Feb. 18, 1981.

Edwards & Perry, Russell H. McMains, Corpus Christi, for petitioner.

Dyer & Redford, David J. Dunn and James W. Wray, Corpus Christi, for respondent.

DENTON, Justice.

This is a workers' compensation case in which Bobby G. Schaefer, plaintiff, sued Texas Employers' Insurance Association, defendant, to recover for an occupational disease. The jury found that the "atypical tuberculosis" suffered by Schaefer was an occupational disease which resulted in total and permanent disability. Judgment was rendered on the jury verdict. The court of civil appeals reversed and rendered judgment that Schaefer take nothing. 598 S.W.2d 924. We affirm the judgment of the court of civil appeals.

Bobby G. Schaefer was employed by C & R Plumbing Company in Flour Bluff, Texas as a backhoe operator in 1958 and became a plumber in 1964. He worked primarily in rural areas of Nueces County. Routinely, Schaefer was required to crawl and tunnel underneath houses to repair or install plumbing. At least once a month during the course of his employment, he worked in soil contaminated with the feces of birds, other fowl, sheep, goats, dogs, cats, and humans. In addition to these conditions, the owner of the plumbing shop where Schaefer worked raised birds commercially in a shed attached to the back of the shop to which Schaefer was exposed. On June 1, 1976, Schaefer bumped his head on a pipe and sustained a nosebleed which required hospitalization. While in the hospital, routine x-rays showed that Schaefer was suffering from tuberculosis.

Schaefer was later diagnosed as having Group III mycobacterium intracellularis. Sometimes referred to as "atypical tuberculosis," this rare disease attacks lung tissue scarring the lungs to the point that they cease to function. It is considered incurable and is usually fatal. The disease is caused by a bacteria, mycobacteria intracellulare. Schaefer's illness is in an advanced stage and he has been unresponsive to drug therapy. Although he returned to work following his hospitalization, physical exertion has aggravated or accelerated his condition and he is now unable to work.

Mycobacteria intracellulare is the general classification for a complex of bacteria which are divided into multiple groups and subgroups of specific bacterium. Schaefer suffers from Avium Battey (Group III) mycobacterium intracellularis. Group III is composed of at least thirty serotypes (subgroups) some of which are non-disease producing, some of which are only slightly pathogenic, and some of which are extremely virulent. Although the group is referred to as "Avium," not all of the serotypes are avian, i. e., pathogenic to fowl. The avian strains are considered the most pathogenic. Apparently, two avian strains and roughly five non-avian strains are capable of producing disease in man.

Medical authorities are uncertain as to the etiology of mycobacteria intracellularis (m. intracellularis). It is more commonly encountered in coastal areas than non-coastal regions. Studies have shown the bacteria to be present in the gulf coast states, England, Wales, and Japan. The bacteria has been identified in a variety of environments: soil, mud, dust, tap water, standing water, sea water, sea spray, milk, ice cream, and cheese. The organism is not affected by pasteurization. It has never been identified conclusively in human waste. Medical authorities are uncertain but apparently the bacteria enters the body by either inhalation, inoculation, or ingestion. The lungs are the most common site of infection.

Incidence of this disease is extremely rare, approximately three cases per million population annually. Certain groups, however, are more susceptible to m. intracellularis than others. For instance, persons engaged in dusty occupations, such as coal miners and sandblasters, have been shown more likely to contract the disease because their immune mechanisms are weakened by inhalation of silicon dioxide. There is also a higher incidence of disease among farmers who work in dirty environments, especially those contaminated by fowl droppings, for reason of their increased exposure to the organism. No studies have ever associated m. intracellularis with the plumbing trade. In fact, according to the record, this is the first reported case in which a plumber has contracted the disease.

The bacteria present in Schaefer's sputum was identified, by laboratory analysis, only as belonging to Group III of the complex m. intracellulare. The organism was not serotyped, ¹ therefore, it is not known whether he has an avian or non-avian strain. Further, the organism from which Schaefer suffers has not been isolated in any of the environments where he worked or lived.

Trial of the case consisted of the testimony of Bobby Schaefer; the testimony, by deposition, of Dr. John S. Chapman, expert witness on behalf of Texas Employers' Insurance Association (T.E.I.A.); and the testimony of Dr. William E. Anderson, Schaefer's treating physician. The jury found the atypical tuberculosis suffered by Schaefer to be an occupational disease compensable under the Workers' Compensation Act. The trial court rendered judgment for the plaintiff. The court of civil appeals reversed the judgment and rendered, holding there was no evidence of probative force to support the jury finding. The question before us is whether the testimony of Schaefer's expert, Dr. William E. Anderson, is some evidence to support the jury finding that Schaefer was exposed to or contracted m. intracellularis while in the course and scope of his employment.

In deciding a "no evidence" point, which is a question of law, we consider only that evidence and reasonable inferences therefrom which viewed in its most favorable light supports the jury finding and we must reject all evidence or inferences to the contrary. East Texas Theaters, Inc. v. Rutledge, 453 S.W.2d 466, 467 (Tex.1970); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

The pertinent statute is section 20 of the Workers' Compensation Act. Tex.Rev.Civ.Stat.Ann. art. 8306 which provides:

Wherever the terms "Injury" or "Personal Injury" are used in the Workmen's Compensation Laws of this State, such terms shall be construed to mean damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom. The terms "Injury" and "Personal Injury" shall also be construed to mean and include "Occupational Diseases," as hereinafter defined. Whenever the term "Occupational Disease" is used in the Workmen's Compensation Laws of this State, such term shall be construed to mean any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body and such other diseases or infections as naturally result therefrom. An "Occupational Disease" shall also include damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment; provided, that the date of the cumulative injury shall be the date disability was caused thereby. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where such diseases follow as an incident to an "Occupational Disease" or "Injury" as defined in this section.

Here, the specific problem is establishing a causal connection between the disease and Schaefer's employment. Causation may be proved by testimony of experts. In Parker v. Mutual Liability Ins. Co., 440 S.W.2d 43, 46 (Tex.1969), this Court stated:

(P)robabilities of causation articulated by scientific experts have been deemed sufficient to allow a plaintiff to proceed to the jury. For while a scientific training conceives of anything as possible, coincidence can be measured and generalizations similar to but not the same as uniform physical laws can be drawn from the probability of a result following a cause. In fact, the relationship between cause and its effect per se without theoretical explanation, can be nothing more than probable relationships between particulars. But this probability must, in equity and justice, be more than coincidence before there can be deemed sufficient proof for the plaintiff to go to the jury.

We have held that in workers' compensation cases expert medical testimony can enable a plaintiff to go to the jury if the evidence establishes "reasonable probability" of a causal connection between employment and the present injury. Stodghill v. Texas Employers' Ins. Ass'n, 582 S.W.2d 102, 105 (Tex.1979); Parker v. Mutual Liability Ins. Co., 440 S.W.2d 43, 46 (Tex.1969); Galveston, H. & S. A. Ry. Co. v. Powers, 101 Tex. 161, 105 S.W. 491, 493 (1907); see Steakley, Expert Medical Testimony in Texas, 1 St. Mary's L.J. 161, 163 (1969). In the absence of reasonable probability, the inference of causation amounts to no more than conjecture or speculation. Insurance Co. of North America v. Myers, 411 S.W.2d 710, 713 (Tex.1966). This precludes the plaintiff from going to the jury. In Stodghill v. Texas Employers' Ins. Ass'n, supra at 105, we wrote that an expert need not use the magic words "reasonable medical probability" if the evidence establishes that this is the substance of his opinion. See also Lucas v. Hartford Ins. & Indem. Co., 552 S.W.2d 796 (Tex.1977); Insurance Co. of North America v. Kneten, 440 S.W.2d 52 (Tex.1969); Otis Elevator Co. v. Wood, 436 S.W.2d 324 (Tex.1968). The substance of the testimony, not its form, is determinative. Western Cas. & Sur. Co. v. Gonzalez, 518 S.W.2d 524, 526 (Tex.1975). In Insurance Co. of North America v. Myers, 411 S.W.2d 710, 713 (Tex.1966), this Court...